Saturday, October 31, 2020

More art law, vintage cheese, art market joy, Justice Ginsburg’s pants, Instagram, and litigation (to come)

If you want to make God laugh, tell him your plans. – Amores Perros (2001)

Fashion stops for no one (online ad from week of April 13, 2020).

First, the good news: The Brooklyn Rail has a wonderful interview with the great Imi Knoebel (go straight to page 42). Definitely worth the read. This past week also marked 19 years since Joey Ramone’s death, and, happily, it also marked 40 years since Iron Maiden and Judas Priest blessed us with two seminal releases: Maiden’s eponymous release and Priest’s British Steel. Rumors continue that these two titans will tour together post-Corona. If we could be so lucky! Now look at these two covers: art in a nutshell

Let’s start with news form the The Artmarket Just Got Hotter files. The AAMD (Association of Art Museum Directors) has blessed art institutions with the ethical right—for two years—to sell off artworks in order to cover general expenses. As I said on my blog, this will make auction houses and the Big 4 galleries very, very happy (along with some collectors). I can imagine competion heating up as we speak over who can sell of the Met’s Egyptian collection, or MoMA’s Pollocks, Warhols, and Judds. Will museums change their collection titles from “Permanent Collection” to “Permanent Collection*”? What exactly are “general expenses” in the time of ‘Rona and post-Rona is to be seen—or litigated (of which I mention more below).

A question: Why.Is.Everyone.So.Sensitive? After posting last week’s musings—containing in part my rant on art schools—I received quite a few emails attempting to make arguments on behalf of art schools and the art industry. Listen. Listen. I was not saying that art schools or art departments should all shut down or that they are all inherently useless and culturally bankrupt. I love art. What I was asking is a series of questions every potential art student, chair and dean should ask on a daily basis: Why art? What is my/our understanding of art and it’s role in a social fabric? Can my notion of art be taught? And is the undergrad/grad school system and art residencies currently in place the only way to disseminate this knowledge and questions?

As some of you know, I attended CalArts for my MFA from 1995 to 1997. It was the most magical and special time in my life. I would do it again and again without hesitation. The faculty, my peers, the courses, the facilities, the other departments, all were more than I could have imagined. It’s a libertarian artist’s dream! But CalArts is an art school that although may have bureaucratic snags, faces nowhere near the obstacles Ivy Leagues schools and other prestigious art departments face. CalArts at that time was predicated on the student finding her/his own way. Some, like me, thrived in this environment. Others hated it. They wanted more hand-holding and less competition. I practically lived at CalArts during those two years and cannot remember one time that I wish I was not there. But I had a diverse group of faculty to learn from, and not just in the art school. My conversations with Robert Blanchon and Alexis Smith, not to mention Michael Asher, Alan Sekula, Charles Gaines, and Tom Lawson, I recall to this day. I often remember my long conversations with Mitchell Syrop: they were about art, language, images, the Santa Clarita landscape, Disneymouse, David Mamet. Conversations held in his adjunct office, my studio, over coffee or over beer. How I miss those days.

Look, I’m not anti-art schools as much as I’m anti-laziness. I never said that being like Charles Bukowski was better than vacationing with the Hausers and Wirths. Just make up your mind and don’t ask one industry to do it all. It’s odd that the one cultural practice that prides itself on breeding Duchamp, Pasolini and performance art is the same cultural practice that is now so comfortable and imbedded in its own skin. If anything, some of the comments I received fully sediment my thoughts on the SF Art Institute. If keeping the status quo is your strongest defense, then you have just given me my stronger offense. In the words of Irene Cara, “take your dreams, and make them happen.”

On to law. Mark my words: this Rona thing is going to elicit a slew of litigation globally and in every industry (health, insurance, manufacturing, transportation, rock concerts…). The art industry won’t be spared. For starters, think of how much the art industry has changed in the last 15 years. When I started my art law blog,, the only other art law blog out there was Donn Zaretsky’s (which he started months before mine). Today, Artnet, The Art Newspaper, Artsy, all have “art law columns” or consistent art law articles. Art law is now taught in law schools, it’s (to my chagrin) an art practice, and there is even The Art & Law Program, an art and law think-tank (mine). It shouldn’t be a surprise that with the advent of the internet and role of money in the art industry the world of visual art has become more litigious and dependent on lawyers. Think rent and lease payments: gallery, storage and studio); employment benefits; loan defaults; non-delivery of services or products; cancelled art commissions; cancelled art transactions; damaged art; and of course the continuation of intellectual property disputes. Hopefully, and in order to avoid costly and needless litigation, parties will opt to settle their differences in the most cost-effective and commonsensical manner, as well as for the sake of art.

While we’re on the subject of the legal profession, a question for you: will Justice Ginsburg be wearing pants? Legal eagle says that the U.S. Supreme Court will be hearing, for the first time in history, oral arguments in pending cases this May via teleconferencing. All audio of the teleconference hearings will be released through a network pool, and thus immediately available to the public on media platforms. I’m not a fan of cameras in the Supreme Court, but making these arguments available to the public via audio can certainly be used by home-schoolers to educate their children—and spouses—on the nature and apparatus of law.

Speaking of lawsuits, if you’re into videogaming and trademarks, you’ll be happy to know that video game maker Activision recently triumphed in a lawsuit against AM General, arguing that the depiction of Hummer vehicles in its video games was protected by the First Amendment.

On the other hand, if you’re posting images on Instagram and you care two cents about your copyrights, you may want to read Instagram’s Terms of Use. An opinion last week from New York Federal Judge Kimba Wood holds that by uploading an image to Instagram and designating it as “public,” you grant Instagram “a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the Content,” which allows Instagram to allow another website, such as Mashable, as Instagram’s sublicensee, the right to embed you image in its website. One question of import is whether this also allows Instagram the right to sublicense to any other appropriators, such as non-internet users. More on this as it develops.

(Image courtesy of 1209 Garage. Copyright 2020 1209 Garage. All rights reserved.)

I leave you with some good news. Mega-corporation Land O’Lakes has decided to remove the image of a Native American woman from its packaging, leaving the landscape uncontaminated by humans or negative stereotypical references (very Corona-like, don’t you think?). Land O’ President and CEO Beth Ford said that as the cooperative, founded in 1921, looked forward to its 100th anniversary it needed packaging that reflects the foundation and heart of the company’s culture. And $14 billion in yearly sales.

If you’re looking for unique historical content, check out The Felix Gonzalez-Torres Family Archive, via its website and Instagram account (FYI: I’m an advisor to the Archive). For a good film, try The Killing of a Sacred Deer, by Yorgos Lanthimos. I can guarantee you won’t think of moral philosophy problems the same. For a book, try Vernon Subutex, by Virginie Despentes. Last but not least, for some heavy old school groovy tunes, how about The Police’s stunning 1981 release, Ghost in the Machine.

Happy and healthy week.
-Sergio Munoz Sarmiento


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